Friend-of-court briefs paint wildly divergent views of transgender care

Republican A.G.s in 18 states support FL’s efforts to cut off such treatments

By: - October 18, 2023 7:00 am

Two Florida medical oversight boards held a meeting about proposed rules for treating gender dysphoria for minors in the state on Feb. 10, 2023. Credit: Issac Morgan

Republican attorneys general in 18 states have joined Florida Attorney General Ashley Moody’s defense of state law banning common medical treatments for transgender adults under Medicaid and for entirely for most transgender children in the state.

Alabama, Arkansas, Tennessee, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Mississippi, Missouri, Montana, Nebraska, South Carolina, Texas, Utah, Virginia, and West Virginia filed a friend-of-the-court brief last week before the U.S. Court of Appeals for the Eleventh Circuit in Atlanta.

Coincidentally, Nebraska has just finalized regulations imposing a treatment ban similar to Florida’s.

U.S. District Judge Robert Hinkle in Tallahassee in June ruled that the best clinical evidence supported use of puberty blockers and hormone treatments for minors diagnosed with gender dysphoria, or acute distress at presenting as their sex at birth as opposed to contrary gender identities. That case is Doe v. Ladapo.

In a related case, Hinkle ruled on June 21 that such treatments were medically necessary and Florida was not entitled to exclude them from Medicaid coverage. That case is Dekker v. Secretary, Florida Agency for Health Care Administration.

The law involved is SB 254, signed into law this year by Gov. Ron DeSantis.

The Republican A.G.s — like Moody’s office did in its own arguments filed earlier this month — asked the appeal court that holds jurisdiction over Florida to reverse Hinkle and allow enforcement of the law.

They argued that Florida is entitled to deference to the Legislature’s conclusion that these treatments are not justified by settled science. It cites contrary medical policies in European countries including the United Kingdom, Sweden, Finland, and Norway.

‘Dramatically different risks’

“[T]he district court’s decision to apply heightened scrutiny hinges on the proposition that providing natural amounts of testosterone to a boy with a testosterone deficiency while declining to give unnatural amounts of testosterone to a girl seeking to transition denies the girl equal protection,” the states’ brief reads.

“That argument fails because these are different treatments for different conditions with dramatically different risks. The fact that a patient’s sex affects the nature of a treatment does not mean anyone is denied equal protection. A doctor offering testicular exams only to boys or pap smears only to girls does not violate the Constitution, nor does a fertility clinic that refuses to implant fertilized eggs inside males. Likewise, Florida’s regulations permissibly account for the reality that certain interventions are different treatments depending on the patient’s sex,” it adds.

The American College of Pediatricians filed its own amicus brief supporting Florida’s position. The Southern Poverty Law Center describes the group as “a fringe anti-LGBTQ hate group that masquerades as the premier U.S. association of pediatricians to push anti-LGBTQ junk science.”

Medical societies

Twenty-five medical societies, including the American Academy of Pediatrics, American Academy of Family Physicians, American Academy of Nursing, and American Medical Association, filed their own brief last week supporting medical and surgical transgender care.

Their brief opened with descriptions of the stakes.

“If not treated, or treated improperly, gender dysphoria can result in debilitating anxiety, depression, and self-harm, and is associated with higher rates of suicide. As such, the effective treatment of gender dysphoria saves lives,” the brief says.

“Empirical evidence indicates that gender-affirming care, including gender-affirming medical interventions provided to carefully evaluated patients who meet diagnostic criteria, can alleviate clinically significant distress and lead to significant improvements in the mental health and overall well-being of adolescents with gender dysphoria,” it continues.

“The health care ban disregards this medical evidence by precluding health care providers from providing patients with treatments for gender dysphoria in accordance with the accepted standard of care,” it adds.

The brief filed by Moody’s office on Oct. 6 also questions the science behind the treatments at issue.

“This case isn’t about what kinds of evidence support puberty blockers and cross-sex hormones as treatments for gender dysphoria,” the state argued.

Those treatments, the state insisted, rely on “low-quality evidence, a lack of longitudinal studies, and guidance documents from biased advocacy organizations.”

“Instead, this case is about what’s to be done with that information; specifically, whether public funds should be used to reimburse for these treatments. It’s a health and welfare question; it’s a medical policy issue. It’s an area where the state gets to draw the line between what’s permissible and what isn’t,” the state’s brief continues.

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Michael Moline
Michael Moline

Michael Moline has covered politics and the legal system for more than 30 years. He is a former managing editor of the San Francisco Daily Journal and former assistant managing editor of The National Law Journal.